#DeniedMyVote was unlawful - help the3million challenge the Government

by Nicolas Hatton

#DeniedMyVote was unlawful - help the3million challenge the Government

by Nicolas Hatton
Nicolas Hatton
Case Owner
Nicolas Hatton is a French national who lives in Bristol and a UK resident since 1995. Nicolas is CEO of the3million, the main organisation representing EU citizens in the UK
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Nicolas Hatton
Case Owner
Nicolas Hatton is a French national who lives in Bristol and a UK resident since 1995. Nicolas is CEO of the3million, the main organisation representing EU citizens in the UK
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Latest: Aug. 4, 2019

Claim issued, time limit clock stopped but still waiting for the Govt response

The Government is still considering the letter before claim that we sent threatening legal action. Its response is late (it should have replied over a week ago), but it has asked for more time, unt...

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Voter disenfranchisement in the UK must not be swept under the table - we can’t let democracy slip away from us.

On the 23rd May, the date of the 2019 EU elections, tens of thousands of EU citizens who had registered to vote were turned away from polling stations all across the UK and told:

No. You cannot vote.

They could see their names right there on the register – but those names were crossed out in red pen, with an unexplained letter ‘G’ next to their name.  No amount of reasoning or phone calls to election officials helped – they were told they could not vote and most could not even be given an explanation as to why.

Democracy is under attack, and we must take a stand. It is vital that the3million seeks justice for the EU citizens in the UK who we speak for. With your support, we plan to take legal action to firmly establish that what happened was unlawful.

This kind of mass disenfranchisement and discrimination cannot be allowed to happen (yet again) in a country like the UK. The Government has refused to even hold an inquiry, effectively blaming EU law for the mess. This is wrong. Please give what you can to support us in our judicial review, which seeks declarations for breaches of rights under EU law, the European Convention of Human Rights and UK domestic anti-discrimination law.

What happened?

Citizens who were denied their vote had made their home in the UK, many for decades.  They had no say in the country’s decision in 2016 to leave the EU – and the 2019 EU elections were their first chance to have any form of democratic voice at the national level.

These citizens were already worried they could face problems.  There had been similar disenfranchisement in the 2014 European elections – due to a complicated two-step registration process that some (but not all!) EU citizens have to go through. A month before the elections, MPs warned in the House of Commons of the chaos to come. MPs wrote letters to local authorities, urging them to do what they could to mitigate the disaster caused by the Government’s complete denial of the inevitability of holding the elections.  the3million ran an intense awareness campaign, and urged the Electoral Commission to do more.

These citizens had done everything asked of them to make sure they could vote: researching voting rules, re-registering onto the electoral roll just to make sure, often even hand-delivering forms to their local council to make sure postal delays would not stand in their way.

And yet – their names were crossed out on the registers.

About our case

Having done all we could before the 2019 EU parliamentary elections, the day itself saw our worst fears confirmed. Both EU citizens in the UK and British citizens in Europe were affected. Jointly, the3million and British in Europe took action:

We raised £40k within 24 hours and we had to stop fundraising because we felt it would be unethical to take people’s money until we were certain we had a viable case.

About half of this ‘Phase 1’ money was spent by the legal team (including experienced solicitors and barristers) working at heavily discounted rates.  A quarter was used so that some volunteers from both the3million and British in Europe could take time off from their day jobs to analyse over a thousand responses coming back from the surveys. The result of all this work was that there is a good case against the Government for both groups, but for British in Europe this would be more difficult to win as they would need to bring a claim against a number of separate public authorities.

The final balance of the funds raised in Phase 1 has been split between the two organisations.  In the case of the3million, it has been put towards this Phase 2 of the legal challenge. In the case of British in Europe, it will go towards producing a short “Do it yourself” guide to the small claims court.

For Phase 2, the3million wants to issue a claim for Judicial Review. We want a declaration that the Government introduced and maintained an inadequate system that led directly to large-scale illegality and unfairness. We need to raise this money now to be protected against the Government’s legal costs if the case is rejected or, if we get permission for a full hearing, we eventually lose the case.  Our entire legal team is working at heavily discounted rates.

Once we get permission for a full hearing, we will then need to go into ‘Phase 3’ of our fundraising effort.  By that stage we hope the High Court will grant a cost-capping order so that we will know how much we have to raise for the full proceedings.

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Update 7

Nicolas Hatton

Aug. 4, 2019

Claim issued, time limit clock stopped but still waiting for the Govt response

The Government is still considering the letter before claim that we sent threatening legal action. Its response is late (it should have replied over a week ago), but it has asked for more time, until 9 August, to reply properly. 


Judicial review claims like this one are subject to a time limit of ‘prompt and within three months’. The Government may want to argue the claim is not being brought promptly (even though we are well within three months of the European Parliamentary Elections). So we and our legal team have decided the safest thing is to issue the claim ‘protectively’ by filing a claim form identifying the individuals involved and the3million as co-claimants and appending the correspondence exchanged with the Government so far. This will stop the time limit clock running. The Government has agreed this course would be sensible. We therefore filed the claim ‘protectively’ in this way on Friday 2nd August. 

 

We will now continue to prepare our evidence and wait to hear from the Government on 9 August. Unless it has a good answer to the claim, or concedes it acted unlawfully and offers an acceptable form of settlement (both of which are possible, but unlikely), we will file our full legal arguments and all evidence by 19 August and the case will progress from there.

Update 6

Nicolas Hatton

July 29, 2019

Does this really matter now?

Our solicitor John Halford, on his blog entry, answers the following question "But does this really matter now? We have a new Prime Minister committed to a ‘do or die’ Brexit policy. The European Parliament elections this May could be the UK’s last for a generation. Aren’t they now old news?"

Update 5

Nicolas Hatton

July 27, 2019

You did it! We can now go ahead!

Thank you all SO much for your support. We have reached our initial £65,000 target which means we can go ahead and issue the judicial review claim.

 

We are confident the Court will grant permission for the judicial review to proceed, so have set a stretch target based on our working estimate of costs for the full hearing. We will revisit this when the Court considers our application for a costs cap.

 

The Government’s response to our letter before claim was due yesterday. So far it has not responded substantively. There may well be a hold up because the new Secretary of State has yet to be briefed. Meanwhile, we and our lawyers have been hard at work building the case so that it is ready to be issued well before the Court deadline. We now have gathered and analysed returning officer data relating to over 25% of EU citizens who were registered to vote (of whom less than a quarter remained allowed to vote on 23 May, thanks to the UK’s UC1/EC6 declaration form system). Witness statements have been prepared for a number of potential co-claimants and witnesses all of whom are directly affected individuals who were denied the right to vote and the grounds for judicial review are being prepared. We will, of course, publish the key Court papers once they are finalised.

 

Thank you again for making all of this possible.

Update 4

Nicolas Hatton

July 19, 2019

Q and A with our soliticor, John Halford

Q and A with our solicitor, John Halford              

The support for the3million’s planned legal challenge so far has been remarkable. Over 900 people responded to the first survey seeking details of what happened. Over 200 have responded to the second survey (and if you were denied your vote, but have not completed it yet, please do so). There were 1,573 pledges to the crowdfunding campaign for the first phase of work and, as I write this 1,720 people have pledged towards the phase 2 crowdfunding campaign. There has been great coverage from the Guardian and Politics.co.uk. The £65,000 fundraising target is in sight. With your and others’ continuing support, that target will be reached and the judicial review claim can be issued. the 3million research team and legal teams are working hard to build the case in the meantime.

So, what next? Now is a good time to break that question down a little and say more about the legal process and strategy. 

There’s one other point to make before I do that though, which is that there is no doubt this is an important case. It is not only about the systemic stripping away of rights by a flawed system the Government promised to change – a promise it then reneged on. It is not only about seeking an authoritative ruling from the Courts that such a system is as unlawful as it is outrageous, and that voting rights are to be cherished and protected. It is also about demonstrating that a group in society cannot lawfully be treated as second class citizens who need to seek official permission to enjoy the same rights as everyone else. It is a case about everyone’s rights being equally valued and equally capable of being exercised.

These are basic democratic principles. They should not need to be defended, but what happened on 23 May shows that they do.

Thank you for your help in making that possible. 

John Halford

Bindmans LLP


Q1: Now the letter before claim has gone to the Government, what happens next? 

A: Under the judicial review pre action protocol, the Government has until 26 July 2019 to respond to the arguments set out in that letter (also summarised here). We have asked it to acknowledge what happened, accept it was unlawful and consider taking remedial steps.

Q2: What will the Government say? 

A: It ought to accept the system operated unlawfully and disenfranchised large numbers of people. But the position it has taken so far (for instance, in Parliament) is that no inquiry into the scandal is needed, it has done nothing wrong and the system was actually required by EU law. It may well maintain that line, even though it is very difficult to reconcile with the undertaking it gave to change the system after people were disenfranchised in 2014. Taking the legal challenge forward will then be the only way to secure accountability, which is why your support is so important. 

Q3: What will the legal challenge involve, then? 

A: The legal challenge will be a judicial review. This is the process for challenging public body decision-making that cannot be appealed. A judicial review claim can be brought by an organisation - like the3million – with a special interest in the issued being litigated, or affected individuals.

Many people have let the3million know that they are interested in being part of the legal challenge. We are in the process of contacting those whose circumstances best represent others falling into the four categories of disenfranchised people identified in the letter before claim as, ideally, the case will be brought both by the3million and a handful of representative individuals so the Court can get a sense of how people were directly affected. We may want to put in evidence from others too as the case progresses.

Q4: How will you build and argue the case? 

A: The evidence will be combined with witness statements about the research the3million has done and describing how the UC1/EC6 Declaration Form system works and the history of the problems it has caused. The legal arguments will set out in another document, called the ‘Grounds of Claim’.

All of this will be sent to the Government and to the Court, which will be asked for permission for the case to proceed. If the Court agrees, it will then decide whether to cap costs. Further evidence and written arguments will be exchanged and then there will be a hearing towards the end of the year or early next year.

Q5: What happens after the hearing? 

A: After the hearing, the Court will give a judgement and, if the case succeeds, decide what remedies to grant to the 3million and any individual claimants. The loss of rights by large numbers of people would be marked by the Court making a declaration and giving a judgment exposing the Declaration Form system as one that unlawfully takes away fundamental rights, that had that effect on a large scale and asking the Court to rule that to have been unlawful. That could have implications for other elections in the UK, but perhaps more importantly for other rights that UK-resident EU nationals currently have.

The law also allows compensation to be claimed by individuals for the consequences of their voting rights being rendered ineffective, including serious injury to feelings, but the UK courts have not set a figure on this in past cases. If the Court decides modest compensation is appropriate, that is likely to be dealt with at a separate hearing, or settled.

Q6: My vote was denied, so can I bring a legal case myself? 

A: In principle, yes. We will prepare and publish some guidance on this. We are likely to recommend that anyone who wants to do this issues a claim and then asks the Court to put it on hold while the 3million’s test case is dealt with.

Q7: Will the Government re-run the 2019 European Parliamentary Elections if it accepts what happened was unlawful? 

A: No. To challenge the results of the poll, there would have needed to be enough evidence to file electoral petitions shortly after the poll on the basis the result in every region would have been different had disenfranchised people been permitted to vote. That was not realistic.

Q8: What is the EU doing about all this? 

A: The Guardian has reported that the European Commission is looking into what happened, but we don’t have details of this and the investigation would not be public. If the UK leaves the EU, any such investigation will come to an end. We don’t presently see this as a meaningful alternative to the legal action we hope to take.

 

Q9: What about the Electoral Commission? 

A: The Electoral Commission has publicly criticised the Government’s actions - up to a point. But it has not taken a position on whether denial of the right to vote was unlawful and it has no powers to hold a public inquiry, so is likely to produce a short report on the 2019 European Parliamentary Elections which identifies some problems, as it did in 2014. We think people should complain to the Electoral Commission using the form the3million has created so it has a sense of the nature and scale of the problem, but its report will not be a substitute for an authoritative Court ruling.

Q10: Can I do more to help? 

A: Yes! Please do donate, or donate again, if you can spare the money. And if you were denied your right to vote, please complain and fill in the second survey if you have not done so already.

Update 3

Nicolas Hatton

July 17, 2019

Revealed: Letter shows UK govt indifference to European voters

Article by Ian Dunt of politics.co.uk: A reply to a letter from the3million to the Dutch Interior Ministry shows: “British authorities barely even bothered to use or transmit the data that was apparently so important it justified disenfranchising them.” “Hopefully [this legal case will] succeed and that democratic crime scene can keep being investigated.”

Update 2

Nicolas Hatton

July 16, 2019

UPDATE: Summary of legal arguments and letter before claim in full

See here for a summary of the legal arguments, and here for the letter before claim, in full, that was sent to the Government on 12th July.

Update 1

Nicolas Hatton

July 13, 2019

Our lawyers send Letter Before Claim to Government!

As reported by the Guardian, the Letter Before Claim has been sent.  We have just two weeks now to reach our target to take it to the Courts, can you pledge a little more and share widely?

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